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Official Opinion 94-23

Official Opinion 94-23

October 24, 1994

To:

Chairman Georgia Public Service Commission

Re:

The Georgia Public Service Commission's jurisdiction over radio common carriers offering Domestic Public Land Mobile Radio Service has been partially preempted by the Omnibus Budget Reconciliation Act of 1993. The Commission still retains jurisdiction over carriers offering Rural Radio Service.

This is in response to your request for my official opinion regarding the effect which the Omnibus Budget Reconciliation Act of 1993 (the "Act"), as well as recent revisions to Federal Communication Commission ("FCC") rules, had on the scope of regulatory jurisdiction over radio common carriers by the Georgia Public Service Commission (the "Commission"). In particular, you are seeking an interpretation of a specific provision of the Act which expressly preempts state regulation over market entry and rates charged by providers of commercial and private "mobile services," and the FCC rules which have been adopted to define those terms.

The scope of the Commission's authority to regulate radio common carriers is established by the Georgia Radio Utility Act, O.C.G.A. § 46-6-1 et seq. In general, the Commission has the jurisdiction to regulate all aspects of radio utility operations and rates. A "radio utility" is defined as any person owning, operating, or managing a "radio utility system" in this state. O.C.G.A. § 46-6-2(4). A "radio utility system" means any facility which provides a "radio service" on a for-hire basis. O.C.G.A. § 46-6-2(5). Radio services are those authorized by the Domestic Public Land Mobile Radio

Service or Rural Radio Service Rules of the Federal Communications Commission which can be found at 47 C.F.R. § 22.500 and 47 C.F.R. § 22.600, respectively. O.C.G.A. § 46-6-2(3).

"Pre-emption may be either expressed or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Public Health Trust v. Lake Aircraft, 992 F.2d 291, 294 (11th Cir. 1993), quoting Gade v. National Solid Wastes Management Ass'n, U.S. , 112 S. Ct. 2374, 2383 (1992). In addition, a federal agency may preempt state regulation in a field when interstate and intrastate services are inseparable. Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 375 n.4 (1986). Due to the provisions of the Omnibus Budget Reconciliation Act and recent FCC rule changes, the Commission's scope of regulation over radio common carriers has been partially preempted by clear expression.

The Act specifically states that, effective August 10, 1994, "no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial [or private] mobile service." Omnibus Budget Reconcilation Act of 1993, Pub. L. No. 103-66, § 6002(b)(2)(A), 107 Stat. 312, 394 (1993). A state may, however, petition the FCC for authority to regulate market entry or rates of providers by demonstrating that unjust or discriminatory market conditions exist. Id.

Subsequent to the enactment of the Act, the FCC undertook rulemaking to determine, inter alia, which radio services should be included within the term "mobile service." FCC Notice of Proposed Rule Making, dated September 23, 1993. A "mobile service" under the newly amended rules of the FCC includes Domestic Public Land Mobile Service but does not include Rural Radio Service. 59 Fed. Reg. 18,496 (1994) (to be codified at 47 C.F.R. § 20.7). Since the Act preempts state regulation of commercial and private "mobile service[s]," the Commission no longer has the authority to regulate rates and market entry of Domestic Public Land Mobile Radio Service providers. In addition, the changes to the FCC rules did not have the effect of expanding the Commission's jurisdiction over other radio common carriers.

The Commission still has the authority to regulate providers of Rural Radio Service, as it has in the past. In addition, the Commission is not preempted from regulating Domestic Public Land Mobile Radio Service providers in aspects other than rate and market entry. Finally, the Commission is able to petition the FCC to regulate rate and entry of commercial mobile services if it can demonstrate that "market conditions . . . fail to protect subscribers from . . . rates that are unjustly or unreasonably discriminatory." § 6002(b)(2)(A), 107 Stat. at 394.

Therefore, it is my official opinion that the Omnibus Budget Reconcilation Act of 1993 partially preempts the ability of the Commission to regulate providers of Domestic Public Land Mobile Radio Service, but the Commission still retains the authority to regulate providers of Rural Radio Service. Recent changes to the rules of the Federal Communications Commission do not have the effect of expanding the jurisdiction of the Georgia Commission over other radio common carriers.